§ 3.04 Trafficking in Sound Recordings of Live Musical Performances 18 U.S.§ 2319A

• Jurisdiction: United States

§ 3.04 Trafficking in Sound Recordings of Live Musical Performances—18 U.S.C. § 2319A

Prior to the passage of the Sound Recording Act in 1971, the Copyright Act protected only the reproduction of musical notations rather than the reproduction of the actual sound. That year Congress extended copyright protection to sound recordings.³⁵⁸ Consequently, persons who made unauthorized reproductions of records or tapes, which is known as "piracy,"³⁵⁹ could be prosecuted or face civil liability for copyright infringement. However, the law failed to address the unauthorized recording and distribution of the recording of a live musical performance, an activity more commonly known as bootlegging.³⁶⁰ Accordingly, an individual who engaged in bootlegging could not be prosecuted under the Copyright Act because there was no underlying copyrighted material involved. In other words, a bootlegger could surreptitiously record a live musical performance and engage in unauthorized distribution of the recording or copies thereof, without having violated copyright law.

In 1994, in response to this perceived gap in copyright law and in recognition of technological advances, including the advent of digital technology that made bootlegging increasingly easy and popular and the Uruguay Round Agreements Act, Congress enacted Title 18, Section 2319A of the United States Code to expressly prohibit the unauthorized trafficking in recordings of live musical performances.³⁶¹

The rights created by Section 2319A in some ways resemble the protections of copyright law but in other ways are distinct from them.³⁶² For example, although the civil provision is incorporated into the same Title as the Copyright Act and borrows the remedies that apply to copyright infringement, neither the civil nor the criminal provision meshes with the overall structure of the Copyright Act.³⁶³ Congress had the opportunity to amend Title 17, Section 102 of the United States Code to include live musical performances in the list of subject matter available for protection, but chose not to.³⁶⁴ The failure to make this inclusion make it unclear whether such well-established copyright concepts as fair use³⁶⁵ and the work-for-hire doctrine³⁶⁶ apply to Section 2319A.

Congress's failure to expressly make the anti-bootlegging provisions of Section 2319A part of the Copyright Act has led to at least two challenges regarding its constitutionality.³⁶⁷ Under the Copyright Clause of the constitution, Congress is empowered to protect "writings." The term "writings" has several limitations, including fixation. This means that Congress may only enact legislation pursuant to the Copyright Clause that protects works which are fixed in a tangible medium.³⁶⁸ In the first challenge to Section 2319A, the defendant argued that a live performance is not fixed, but is "fleeting and evanescent," because, but for the bootlegger's decision to record, there would be no fixation.³⁶⁹ The court first declined to decide whether "the fixation concept of the Copyright Clause can be expanded so as to encompass live performances . . . that have not been reduced to a tangible form."³⁷⁰ However, the court went on to note, that it is assumed "without deciding, that the above described problems with the fixation requirement would preclude the use of the Copyright Clause as a source of Congressional power for the anti-bootlegging statute."³⁷¹

The court, however, upheld the defendant's conviction on the ground that the Commerce Clause of the constitution provides an alternative basis for the enactment of Section 2319A. Despite Congress's belief that it was acting pursuant to the Copyright Clause, the court initially held that Section 2319A had a sufficient connection to interstate and foreign commerce to meet the Supreme Court test in this area.³⁷² The court went on to hold that the Copyright Act does not limit Congress from extending copyright-like protection under other constitutional clauses, such as the Commerce Clause, to works of authorship that may not meet the fixation requirement inherent in the term "writings."³⁷³ In the case of Section 2319A, "[e]xtending quasi-copyright protection to unfixed live musical performances is in no way inconsistent with the Copyright Clause, even if that Clause itself does not directly authorize such protection. Quite the contrary, extending such protection actually is in harmony with the existing scheme that Congress has set up under the Copyright Clause. A live musical performance clearly satisfies the originality requirement. Extending quasi-copyright protection also furthers the purpose of the Copyright Clause to promote the progress of the useful arts by securing some exclusive rights to the creative author."³⁷⁴ Thus, the court concluded that extending copyright-like protection in the instant case is not fundamentally inconsistent with the Copyright Clause.

In United States v. Martignon, however, the court struck down Section 2319A on the ground that it exceeds Congress's power under the copyright clause.³⁷⁵ At the outset, the court discounted the earlier decision in United States v. Moghadan³⁷⁶ on the ground that the defendant did not challenge that Section 2319A covered works for perpetuity in apparent violation of the "limited times" provision of the Copyright Clause, but rather focused solely on the fact that the statute regulated live musical performances, which were beyond the scope of the Copyright Clause's definition of "writings."³⁷⁷ The Martignon Court pointed out that while the court in Moghadan had found that Section 2319A was not "fundamentally inconsistent" with the Copyright Clause, that court may have concluded otherwise had the defendant challenged the statute's violation of the "limited times" provision in the Copyright Clause.³⁷⁸ According to the Martignon Court recordings of musical performances are considered original artistic performances within the copyright clause's definition of "writings," but live musical performances themselves, for which an artist has not authorized a recording, never became fixed.³⁷⁹ "While the category of 'writings' has expanded over time, it has never moved into the realm of unfixed works. The Framers of the Constitution created a system whereby only fixed works were entitled to Copyright protection, and Congress has honored this interpretation of 'writings' since that time. Hence, by virtue of the fact that it...